TMI Blog2006 (12) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... isement, pamphlets or such other material containing the disparaging and false information relating to U.V. Purifier and also for a direction to the defendant to public in the newspapers and media a statement that insofar as U.V. Purifier is concerned, the assertion made by the defendant is not based on any scientific information. The appellant also filed applications as per I.A.Nos. 1 and II for temporary injunction against the defendant. An interim order was passed by the trial court on the said two I.As. in favour of the appellant and, after the appearance of the defendant and upon I.A.Nos. IV and V being filed by the defendant praying for vacating the ex-prate ad-interim order of temporary injunction, the learned trial judge heard the parties on all the four I.As. and passed the impugned order. I.A.Nos. I and II filed by the appellant came to be dismissed and ex-prate ad-interim order of temporary injunction was vacated thereby allowing I.A.Nos. IV and V filed by the defendant. Aggrieved by the said order, the appellant-plaintiff is before this Court. 3. The facts in brief which led to the impugned order being passed by the trial court on the I.As. filed can be stated as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and operates from at least fifty different locations worldwide and further, Pentair Water Group is a global leader in providing innovative products and systems used worldwide in the movement, treatment, storage and enjoyment of water and that Pentair is the world's largest manufacturer of softener equipment, Reverse Osmosis (RO) membrane housings and commercial drinking water systems and boasts of a client list that includes Air Force One, Mitsubishi, Japan, GE, U.S.A., Violia France, Australia and Singapore, and Degremont Spain and France, to mention a few. In addition to the above, the respondent-defendant is a manufacturer and seller in India of inter alia Water Purification Systems including water purifiers using Reverse Osmosis (RO) technology and water purifiers using Ultra-Violet (UV) technology. It is its case that the UV technology is different from RO technology and besides these two, there are many other technologies available for water treatment. Even the advertisement taken out by the respondent is a statement of fact relating to RO technology and the appellant-plaintiff itself has carried a comparative chart in its website about the two technologies and, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n error in observing that, in the absence of use of the word Aquaguard in the advertisement, the appellant can have no grievance. It is submitted that as the appellant uses UV technology in marketing its water purifier through the brand name 'Aquaguard', the advertisement in question is disparaging even in a generic sense and, as such, actionable. It is further submitted that the very same contentions as are being advanced before this Court by the respondent were also the contentions taken in the case at the District Court, Goa, and the said District Court rejected the contentions of the respondent and granted injunction in favour of the appellant herein and, as such, the said decision operates as res judicata so far as the respondent is concerned. The very fact that the advertisement mentions that the contaminants are not visible even to UV water purifier itself is sufficient to damage the appellant's product and its business in marketing the Aquaguard water purifier using UV technology. Therefore, the advertisement in effect causes confusion in the minds of the consumers and would divert them from using UV water purifiers and persuade them to go after the water puri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires to be granted. 12. On the other hand, the learned senior counsel Sri Vijaya Shankar for the respondent submitted that there is nothing disparaging in the advertisement earned out by the respondent company and as there is no reference to 'Aquaguard' or to the plaintiff's name in the advertisement, the question of any disparagement being caused to the appellant will not arise. Further, it is not in dispute that both the appellant and the respondent companies use both UV and RO technologies. As such, the question of any disparagement much less any irreparable injury being caused to the appellant-company will not. arise and, therefore, it is not necessary to go into other aspects of the matter. It is then submitted that courts are not the appropriate forums for resolving differences between the traders. As far as the additional grounds urged in the appeal are concerned, it is contended that the appellant is not a manufacturer, but is engaged only in the marketing of vacuum cleaners. As far as the order of injunction granted by the District Court at Goa is concerned, that was a case in which a picture of Aquaguard was put in the publication, but the publication w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice in support of the above conclusion. In the case of Dabur India Ltd. v. Emami Ltd. reported in 2004(29) PTC 1, dealing with the advertisement Garmion mein chyawanprash bhool jao, Himani sona chandi amritprash khao (Forget Chyawanprash in summers, eat Amritprash instead ), the Delhi High Court has observed thus: The aforesaid effort on the part of the defendant would be definitely a disparagement of the product Chayawanprash and even in generic term the same would adversely affect the product of the plaintiff. The presence of the defendant in the market is only to the extent of 12% of the total market of Chayawanprash in India whereas the plaintiff has about 67% share/presence in the Indian Market and if sale of Chayawanprash is weeded out from the market during the summer months, the plaintiff's presence in the market for sale of Chayawanprash is adversely affected. Even if there be no direct reference to the produce of the plaintiff and only a reference is made to the entire class of Chayawanprash in its generic sense, even in those circumstances disparagement is possible. There is insinuation against use of Chayawanprash during the summer months, in the advertiseme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ser can say that his goods are better than his competitors but he cannot say that his competitor's goods are bad because that would amount to slandering or defaming the competitor and its goods, which is not permissible. But if there is no derogatory reference at all to the goods or to the manufacture, no action lies against that advertiser. In that case, the High Court concluded that in the advertisement, the competitor's product was stated to be of an inferior quality. 19. Therefore, having regard to the aforesaid position in law, in the instant case, the advertisement will have to be held to be a disparaging one, even in a generic sense and hence is actionable. 20. As far as the contention of the learned senior counsel for the respondent that the appellant is not a manufacturer but is only a trader and, therefore, the question of disparaging the goods of the manufacturer does not arise, is concerned, it is to be said that in the case of Karamchand Appliances Pvt. Ltd. v. Sh. Adhikari Brothers reported in 2005(31) PTC 1, at paragraph-31, the High Court of Delhi, referring to the aspect of manufacturer vis-a-vis trader, has observed thus: 30. There is merit even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined even at the instance of a party who manufactures or trades in that class of goods. Hence, the argument of the learned senior counsel for the respondent that the appellant is not a manufacturer of UV purifiers, therefore, does not make much difference inasmuch as both the manufacturer as well as a trader can approach the court if there is disparagement of the product with which they deal. As the appellant is said to be a pioneer and leader in UV water purifiers and claiming to be Asia's largest direct selling organization accounting for more than 70% market share of UV water purifier segment, certainly the advertisement put up by the respondent causes irreparable damage to the appellant's product, Aquaguard. 22. As far as the contention of the learned senior counsel for the respondent that both the appellant as well as the respondent use both UV and RO technology and, therefore, the question of disparagement does not arise, is concerned, merely because both the technologies - UV and RO, are used, that itself is no ground to cause disparagement of the product of the appellant company, Aquaguard, which uses UV technology. 23. As far as the decisions relied on by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever Ltd. reported in AIR1999SC3105 , the court has to consider whether the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case. Although both sides have relied on a number of decisions as regards the scope of the appellate court with regard to interference against the order passed by the trial court under Order 39 Rules 1 and 2 of the C.P.C., and as the proposition of law laid down in the cases referred to by the learned Counsel for the parties are no longer res integra, I would like to refer to two decisions of the Hon'ble Supreme Court which, in my opinion, would be of great relevance to answer the point under consideration in the light of the facts and circumstances of the case on hand. 27. In Wander Ltd. v. Antox India P. Ltd. reported in the Hon'ble Supreme Court has laid down the following proposition of law: 14. ... the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove proposition of law laid down by the Apex Court as regards grant of injunction. Therefore, in my considered opinion, when the trial court has ignored the well-settled principles of law as laid down by the Apex Court, the conclusion reached cannot, but, will have to be held as perverse and capricious. Merely because there was no mention of the word 'Aquaguard' in the advertisement, the said omission will not take away the disparaging effect of the advertisement insofar as the appellant's product is concerned, which product uses UV technology. 30. Although it is neither proper nor warranted for this Court, at this juncture, to go into the merits of either of the two technologies viz., UV and RO technologies, yet, the very fact that the UV technology is being used by the appellant in its water purifier, Aquaguard, the trial court ought to have held that this is a matter involving a serious question to be tried and, therefore, the impugned order cannot be sustained in the light of the well settled proposition of law laid down by the Apex Court and further the trial court also erred in not taking note of number of documents produced by the appellant in proof of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, .... 33. Bearing the above observations in mind, I have confined the discussion only in respect of the suit that is filed before the court at Bangalore and the order which is impugned in these appeals and irrespective of the order passed by the District Court at Goa. Even viewed independently, in the instant case, the facts and circumstances referred to above and the nature of the advertisement that is carried are themselves sufficient to come to the conclusion that prima facie, the advertisement in question amounts to disparaging the product of the appellant. I, therefore, deem it unnecessary to go deep into the question of res judicata, neither have I drawn any sustenance from the order passed by the District Court at Goa to arrive at my conclusion as above. 34. For the aforesaid reasons, I answer point No. (ii) also in the affirmative. 35. In the result, all the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
